In order to apply for a divorce you must be legally separated for at least 12 months.

Don’t ignore the ticking clock… One of the first things we ask our clients who seek a divorce is whether property matters have been resolved between them. Once divorced, you have only a further 12 months to resolve any property matters. If you haven’t resolved the property division by then or applied to the court, you will need special leave of the court to apply to finalise matters and protect your rights to a financial settlement

These days with the rising price of house prices/rent and the need to continue to pay the mortgage until a property settlement is negotiated and the house either sold or the home loan refinanced, many folks decide that they will be better off financially staying in the house together for the time being – although living separate lives.

This common situation is recognised by the law and is called ‘separation under the one roof’. The 12 months’ requirement for separation still applies but identifying the date that separation began can be a little more challenging.  In this situation additional proof may be needed to accompany the application for divorce. Such details might include when and how you told your children and family you were separated, when you or your partner moved into the spare bedroom and you each began cooking your own meals, doing your own household chores and separating your finances.

Court attendance is only required if:

• you have filed a sole application and there is a child of the marriage aged under 18 years at the time of filing;
• you have indicated that you wish to attend in the application;
• either party has objected to the divorce being heard in the absence of the parties; or
• the other party opposes the application.

The court cares a great deal about the children of the marriage and as part of the divorce application, you will be required to attend the hearing and advise the care arrangements for any children under the age of 18 years. Where there are no children involved, often there is no requirement for either party to attend court and the application can be processed simply on the paperwork.

If you need further help sorting parenting arrangements, we can help.